Originalist scholars have been hard at work to backfill justifications for the Roberts Court’s pronouncement in Seila Law of an indefeasible presidential power to remove executive branch officers (a prominent recent example is Aditya Bamzai and Saikrishna Bangalore Prakash, The Executive Power of Removal). Unable to point to constitutional language authorizing (much less requiring) presidential removal, purported originalists have located this power provisionally in Article II’s broad grant of “The executive Power” to the President based in part on the argument that executive power, as understood by the Founders, undeniably encompasses the power to remove executive officers at will.
Into this consequential debate wades Jed Shugerman, with Freehold Offices vs. “Despotic Displacement”: Why Article II “Executive Power” Did Not Include Removal. Shugerman persuasively demonstrates that there was no general rule of indefeasible executive removal power prior to and at the founding. Instead, there was a mix of office types—from cabinet-level officers who served at the pleasure of the king, to patronage offices usually held at the pleasure of the patron officer, to offices that were bought and sold as unremovable freehold property (a practice known as venality). The article itself is a tour de force, presenting extensive evidence to support this office hybridity claim and responding point-by-point to existing and anticipated counterarguments by unitary executive theorists. And it is but one installment in a larger project to debunk unitary/originalist claims about the President’s removal power (which also includes The Indecisions of 1789: Inconstant Originalism and Strategic Ambiguity and an extensive Appendix to this article cataloguing Unitary Executive Theorists’ misuse of historical sources). This brief post will touch on only a sliver of Shugerman’s intricate argument and extensive evidence, which I encourage all to read for themselves.
I was particularly interested in Shugerman’s account of venality—the practice of buying and selling offices as property. I must confess that I am no originalist. My eyes glaze over at the first mention of the First Congress. But Shugerman’s article caught my eye not only for its rejoinder to the pseudo-originalism of the Court’s recent appointment and removal jurisprudence, but also for its relevance to ongoing discussions of bureaucratic accountability.
At the core of the originalist case for unfettered presidential removal power is the empirical claim that English monarchs had the indefeasible prerogative to remove executive officials and that this power was universally assumed by the Founders to be part and parcel of the executive power. In this telling, silence about removal power in constitutional text, convention debates, and other Founding-era documents only reinforces the taken-for-granted nature of executive removal power. Thus, the story goes, when the Founders vested the executive power in the President, they surely took for granted that it included unfettered removal power. Apart from legitimate debate about whether the Framers intended to bestow royal prerogatives on the President, Shugerman takes more direct aim at the empirical premise of the originalist story. He demonstrates that removal was not a royal prerogative power and, moreover, it was not even a general or default practice of English “executive power,” nor would the Founders have understood it to be. In fact, this assumption is the product of modern originalists taking modern practices for granted as past norms.
While Shugerman is not the first to show a long history in England and America of offices held as property for a “term of years” and protected from removal, his account fills several important gaps and responds to the most serious critiques of prior scholarship. First, he documents that the practice of establishing offices as freehold property (for a term of years or for life) and inheritable was much more widespread than previously understood. He shows not only that the practice was systemic throughout Europe, but that it was particularly entrenched in English law as freehold property. This responds to critiques that prior scholarship identifying the existence of tenured offices provides only isolated and anecdotal evidence.
Second, responding to critiques that previously reported historical evidence of offices held as property was too remote in time from the founding to have influenced the Founders’ understanding of executive prerogatives, Shugerman shows not only that the general practice of venality persisted in eighteenth century England but that such “offices of profit” were a part of the Founders intellectual and day-to-day experience. Venality was not merely mentioned, but endorsed by enlightenment figures such as Montesquieu, who were studied and revered by the Founders. In The Spirit of the Laws, Montesquieu offers a defense of venality as antithetical to despotic states (“where the subjects must be placed or displaced in an instant by the prince”) but “good in monarchic states, because … it gives each one his duty, and it renders the order of the state more permanent.” (P. 20.)
Moreover, Shugerman shows that venal offices were a part of everyday life in colonial America, and that they existed at all levels of government. Purchasing officer commissions was standard practice in the British military that ruled the colonies. Indeed, it was a source of frustration for ambitious Americans like George Washington because it limited their access to military promotions. Proprietary colonies such as Maryland were governed by non-removable proprietors, who not only governed the colony but owned it and passed it like property to their heirs. There is evidence that colonists were broadly aware of the British practice of buying and selling offices and resented it. Scholars have identified venality, and the attendant abuse of venal offices, as a factor motivating the Revolution, and such practices make a brief appearance in the list of grievances catalogued in the Declaration of Independence.
While Shugerman acknowledges a trend away from venality occurring at the time of the Founding, he demonstrates that venality persisted alongside the emerging modern bureaucracy well into the nineteenth century. And although colonial Americans might have shared a distaste for venality, they surely did not share the universal assumption that problematic officials could be removed by their superiors at will. Importantly, Shugerman shows that Founding-era debates and records reflect a knowledge of this eclectic mix of office types and contain no evidence of an intention to depart from this background norm.
This raises the question how such an apparently corrupt system of offices-for-sale could have spread as widely and persisted for as long as Shugerman claims. He provides a fascinating explanation about the pre-modern logic of venality that will be of interest to those of us who think about state-building and bureaucratic accountability. To govern a vast nation in which the Crown’s control was concentrated in the capitol, the King had to identify qualified elites and persuade them to abandon alternative sources of wealth and power to become administrators. The sale of legally protected tenure in offices that came with a monopolistic system of fees, patronage, and franchising (many venal officers had the power to sell additional offices beneath them) provided the right mix of incentives. First, the sale of offices ensured that they would attract individuals with sufficient skills, industry, and accomplishment to have amassed the wealth to buy them. An imperfect proxy, to be sure, but a reasonable second-best in a pre-modern world where the systems of measurement and centralized management necessary to support meritocracy were impractical or non-existent. Second, the spoils of office—coupled with stability of tenure—were an attractive lure, especially to non-first-born sons of feudal elites.
Tenure protection was essential to the system because it ensured officeholders a return on their investment. Who would pay for something the King (or other superior officers) could alienate on a whim? The Crown recognized this and maintained this system of venality alongside a system of officers who served at the King’s pleasure. And this is precisely the point relevant to current debates about whether the President’s executive power entails a removal power. Although the King had, in practice, a removal power at pleasure, Shugerman shows that “[e]xecutive removal was not an assumed power, because it would have undermined the core system of exchange of offices-as-profitable-property, of offices-of-investment[.]” (P. 26.)
To be sure, there is much to critique in the theory of bureaucratic accountability that supported venality in its day. Yet, it is not clear that the theory of accountability underlying the Court’s insistence on unfettered presidential removal power is much sounder. Just like venality, the Court’s hyper-politicization of administrative offices presents rich opportunities for corruption; but now, individual investment and tenure in office no longer disincentivize corruption that might sully the officeholder’s property or counterbalance the chief executive’s power. As Jeremy Bentham neatly summarized, venality “may be called a corruption, but it serves as an antidote to a corruption more dreaded.” (P. 41.) Offices are still effectively bought and sold, today to wealthy campaign donors and political cronies who occupy them at the President’s whim. Unlike their wealthy forbears, these individuals have no incentive to preserve the value of the office they occupy. Their sole incentive is to aggrandize the President. This undermines the Roberts Court’s theory of bureaucratic accountability through presidential control and suggests the imperative to temper control with other accountability mechanisms.
